The Court considers the legal compensation for dismissal insufficient.

It is resolved Appeal filed by the company against ruling no. 142/2023 of the Single Social Court of Éibar, dated 11/28/2023, orders 299/2023, complaint regarding dismissal.

The worker provided services for a company with indefinite contract and seniority since March 1, 2021.Participated in a selection process convened by a City Council,being included in the job pool. On March 9, 2023,The City Council contacted by telephone with him, offering him a Maintenance Technician position of the Sports Center with a salary of 32,750 euros gross per year, distributed in 14 payments, and a minimum duration of one year. The City Council subsequently confirmed the aforementioned conditions by email. He worker accepted the offer y requested leave from the company in which he worked, effective from March 24, 2023.

He City Council formalized the contract through a interim contract full-time per vacancy, with effects of March 27, 2023. The contract established that it will expire "when a selective process for the provisional or definitive coverage of the square is completed, and never with a duration of more than 3 years. Within this period, the selective process that corresponds to the City Council must be completed." However,once the provision of work has begun, they verbally informed him that there had been a hiring error and that your Last day of work would be April 30, 2023. They gave him the company certificate to process unemployment benefits, indicating that the contract was terminated due to “end of the relationship.”

The first instance ruling declared the dismissal inadmissible and ordered the company to choose, within a non-extendable period of five days from the notification of the ruling, to choose between worker reinstatement to their job under the same conditions prior to dismissal, with the payment of salaries processing until notification of the resolution, or payment of a compensation of 493,49 €, in addition to a additional compensation of €30,000.

The legal representation of the defendant filed appeal alleging violation of article 110 of the Social Jurisdiction Regulatory Law, article 56 of the ET, articles 4 and 140 of ILO Convention 158 and the article 24 of the European Social Charter, as well as the jurisprudence that interprets the aforementioned precepts.The issue being discussed is whether the payment of the additional damages. The defendant alleged that the only applicable compensation is that established in the art. 56 ET (STS 28.1.23) and stressed that the worker resigned from his previous job.

The Social Room of the TSJ of the Basque Country To respond to the appeal, he collected the precepts violated:

• In art. 4 of the ILO Convention 158 on the termination of the employment relationship at the initiative of the employer establishes that “ A worker's employment relationship will not be terminated unless there is a justified cause (…).” In turn, art. 10 states that “(…) if the termination of the employment relationship is unjustified, it is appropriate to propose the reinstatement of the worker or the payment of adequate compensation.”
• Article 24 of the European Social Charter regulates the “Right to protection in case of dismissal” and points out that in the event that a worker is dismissed “without valid reason” equivalent to the qualification given in our system of "unfair” provides that workers are adequately compensated.  
• In art. 56 of the E.T. has “ When the dismissal is declared unfair, the employer, within a period of five days from notification of the ruling, may choose between the reinstatement of the worker or the payment of compensation equivalent to thirty-three days of salary per year of service, with periods of time less than one year being prorated by month, up to a maximum of twenty-four monthly payments. The option for compensation will determine the termination of the employment contract, which will be deemed to have occurred on the date of effective termination of employment." 
•  Article 110.1 and 3 LRJS establishes "If the dismissal is declared unfair, the employer will be ordered to reinstate the worker under the same conditions that prevailed before the dismissal occurred, as well as the payment of the processing salaries referred to in section 2 of article 56 ET or the election of the person to whom compensation is paid, the amount of which will be set in accordance with the provisions of section 1 of article 56 of said law with the following particularities (...)”

The Hall, in his analysis, cited various jurisprudence, including the Sentence of the TSJ Catalonia 469/2023 of January 30 (rec. 6219/2022), which was the first to apply the sentence of additional compensation according to the European Social Charter.

He Court, under the circumstances, concluded that the compensation assessed was not adequate to compensate for the damage suffered by the worker, who had left permanent employment by accepting an offer of a temporary contract with an expected duration of at least one year.The compensation of €493.49 did not compensate for the loss from his previous employment. Furthermore, it was considered necessary to take into account the art. 183.3 of the LRJS, which, in cases of violation of fundamental rights, contemplates two types of compensation:appraised and the repairer for constitutional violation. Therefore, a double repair, the appraised, according to art. 56 ET, and that derived from the actual damage and loss that exceeds the assessed compensation.

The lower court ruling was based on the concept of lost profits, to resolve the dispute, conclusively demonstrating the economic damage and loss of income of the worker.  The TSJ also assessed other compensation formulas, such as the fictitious calculation of having worked that year or even three years, or the compensation contemplated in art. 281.2.b) of the LRJS, which provides for additional compensation for damages in the event of non-reinstatement or irregular reinstatement, of 15 days of salary per year of service, with a limit of 12 monthly payments, considered as time of service until the date of the order of non-reinstatement or irregular reinstatement. However,Given the different options, the Court finally decided to apply additional compensation.

Therefore, the Chamber rejected the appeal presented by the City Council and confirmed the lower court ruling. which granted compensation of €30,000. This amount corresponds to the salaries that would have been received in a year of work, in addition to the payment of the corresponding processing salaries until the date of notification of the resolution of the appeal.